This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP2547-CR

Cir. Ct. No.2009CF973

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Michael L. Cramer,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:kevin
e. martens and jeffrey a. wagner,
Judges.Affirmed.

Before Fine, Kessler and Brennan, JJ.

¶1FINE, J. Michael L. Cramer appeals the
judgment entered on a jury verdict convicting him of first-degree reckless
homicide, see Wis. Stat. § 940.02(1), and the circuit court’s order
denying his motion for postconviction relief.[1]Cramer contends: (1) the State “presented demonstrably false
and misleading testimony at the trial that violated” his right to due process;
(2) he should get a Machner hearing on his claim that his trial lawyer gave him
constitutionally deficient representation; and (3) he is entitled to a new
trial in the interest of justice.See State
v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (hearing to
determine whether lawyer gave a defendant ineffective assistance).We affirm.

I.

¶2In February of 2009, the State charged Cramer with physical
abuse of a child because his ten-week-old son, Matthew, who had been in
Cramer’s care, came to the hospital with “acute bleeding around the brain, subdural
hemorrhaging, retina bleeding behind both eyes, linear bruising to the left arm
and left thigh area and consistent abusive head trauma.”When Matthew arrived at Children’s Hospital,
he had a pulse, but needed help breathing and was in “a comatose state.”

¶3Cramer told Milwaukee police detective, Ronald Taylor, that
he had been caring for Matthew and his three-year-old daughter, Camariana,
because Cramer’s wife, Candace, left at 8:30 a.m. to run errands.Cramer said Matthew seemed “perfectly
healthy.” Cramer said he fed Matthew at
11:30 a.m., but could not burp him. Cramer told the officer that he then put
Matthew face down on the couch so he could take a shower.Cramer said that Matthew “appeared agitated”
and “was fidgeting and moving around.” Cramer
said that he found Matthew limp and nonresponsive about fifteen to twenty
minutes later. Cramer told the officer that he then started
cardiopulmonary resuscitation and called 911.

¶4Medical help arrived and, after twenty to thirty minutes, got
Matthew’s “pulse back.” Paramedic
Stephanie Hampton removed Matthew’s diaper “to get some idea of how long this
baby ha[d] been” “[n]ot breathing, no pulse, baby dead,” and found “the stool
in the diaper was cold.” Hampton also
noticed “bruising there on [Matthew’s lower] leg” “[a]nd … some other bruising,
upper body bruising[.]” The paramedics
took Matthew to Children’s Hospital.

¶5Mrs. Cramer told the police that Matthew had been acting
normally the night before this incident, explaining that she fed, burped, and
changed Matthew at 3:45 a.m. and 6:55 a.m.She said that Matthew was awake when she left the house that morning and
that she did not see any bruises on him.When police confronted Cramer about the medical evidence showing that
Matthew “had sustained brain injuries that were consistent with blunt force
trauma,” Cramer told police “that he didn’t know right from wrong anymore and
didn’t know himself anymore”; that “he wanted to tell what happened, but that
he wanted to tell his wife first but that he didn’t know how to tell her.” When the officers told Cramer that he would
have to tell them “the entire truth” before he could meet with his wife, Cramer
refused, saying “he would be judged no matter what he said that he would be
viewed as a child abuser.”

¶6Matthew died in September of 2009 after the hospital removed
him from life support. Milwaukee County medical
examiner, Dr. Wieslawa Tlomak concluded that Matthew died from “complications
of blunt force injuries of the head[,]” and ruled the death a homicide. The State amended the charge against Cramer to
first-degree reckless homicide.At the trial,
the State called Dr. Thomas Valvano, who treated Matthew as an “attending child
abuse physician[ ] at Children’s Hospital.” Dr. Valvano testified, as material:

·He does evaluations on children who come to the
hospital with “injuries [that] we don’t know how they happened or we are
worried that they may have been inflicted injuries.”

·“Matthew was a two[-]month old who had a severe
brain injury without any clear explanation as to why that happened[.]”

·Mrs. Cramer told him that Matthew had not been
in any car accidents or had fallen, and that Matthew had not been sick but was
“an active, healthy, normal acting baby.”

·He examined Matthew and found that he was
non-responsive and had fixed and dilated pupils. He also testified that “Matthew had a linear
bruise to his left arm and also had bruises above and below his left knee, and
those were important because he’s only two months old.So he’s not walking and running and playing
like a toddler, and so he’s not doing anything that should result in a
bruise.Unless something is done to him,
he shouldn’t have any bruise. … So they
were a sign that Matthew had sustained some trauma.”

·Matthew’s bruises suggested that the child “sustained
some intentional injury,” in light of no “history of any accidental injury.”

·“[T]he CT scan showed that Matthew had
bilateral, meaning on both sides of his brain, subdural hemorrhages.So that means that there was bleeding in the
subdural space over the front part of his brain on both sides.”

·“[B]y the time we got the MRI done” “you could
still see the subdural hemorrhages” and “we could now see significant swelling
of the brain that had evolved from this initial brain injury that Matthew had
sustained.”“[W]e also saw small
petechial hemorrhages within the brain tissue itself[,]” and “there was injury
to the brain stem itself.”

·“[W]hen we see trauma to the head, we often see
in association with that head trauma bleeding in the retina.” “Matthew had extensive retinal hemorrhages in
both eyes” in “a very specific pattern that has very few causes.”

·“[W]here the neck ends and the upper back
starts, so at that part of the spine and the spinal cord there was a hematoma,
essentially a swelling and collection of blood … a bruise to the spine.”

·Based on this, Dr. Valvano told the jury that
his “opinion was that Matthew had sustained abusive head trauma.”“These injuries take significant force.This isn’t trauma from normal handling of a
child.This isn’t trauma from an
accidental injury.This isn’t symptoms
of an infection or a bleeding disorder or suffocation, accidental suffocation,
or all of the other things that we considered that didn’t fit.This taken as a whole all of these injuries
indicated that Matthew had been abused.” (Formatting altered.)

·Dr. Valvano testified that he ruled out sudden
infant death syndrome as a cause because “you don’t see bruising.You don’t see retinal hemorrhages.You don’t see these subdural hemorrhages and
petechial hemorrhages to the brain tissue itself.[Sudden infant deaths] look very, very
different than Matthew looked.”

·Dr. Valvano also told the jury that he did not “think
that the injuries I saw are the result of the [e]ffects of having resuscitated
him and having him brought back to life.”“We see [the injuries that Matthew had] in children whose head has
sustained these sort of rotational acceleration, deceleration kind of forces to
the brain as a result of trauma.”

·Dr. Valvano also told the jury that he could not
“tell you the exact mechanism of what was physically done to him[,]” but
“[t]hese injuries are the result of what we call rotational acceleration
deceleration forces to the brain” “either because someone throws the baby down
or throws the baby across the room or bangs the baby’s head against something
or hits the baby’s head against a sofa cushion or shakes the baby or a
combination of those things, the head moves in this arc back and forth.”

·He testified that “[w]e have a lot of experience
with” “accidental falls or [kids who] get accidentally dropped” in hospitals
“and it’s been well studied.”“These
kids don’t sustain brain injury from those short falls.They may have a bump on the head.They may have a little bit of focal
bleeding.They may sometimes rarely have
a skull fracture or a collar bone fracture or a bump or a bruise.But that kind of focal injury from one impact
gives you a very sort of focal specific located injury, not a diffuse injury and
not multiple injuries like Matthew had.”

¶7On cross-examination, Dr. Valvano testified:

·There was no evidence of external injury on the
skull, no bruises on the skull or neck.

·“Oftentimes children with abusive head trauma
present with absolutely no signs of external trauma, and that’s not uncommon …
because you can have impact against, for example, a cushion like a mattress or
a sofa cushion or a chair cushion, and that won’t leave any external signs of
injury necessarily.But that’s still a
force from sudden deceleration that gets transmitted to the brain and that
injures the brain even though it leaves no external sign of injury.”

·“Shaking could have been part of what happened
to him, but it’s only one of the different types of mechanisms I’ve described
that causes these injuries.” “Shaken
baby syndrome is a subset of the types of trauma that can cause these
injuries.So abusive head trauma
includes shaken baby syndrome, but it also includes banging the child’s head
against a table or a wall or throwing a child against the room.”

·Shaken baby syndrome is “still used quite
frequently; but as I said, it’s a subset of abusive head trauma which is also a
term that is being used to describe this because it more fully describes what
may have happened to the child.”

¶8When asked about the “controversy in the medical field about
shaken baby syndrome” Dr. Valvano responded:

There really is no controversy
outside the courtroom.The American
Academy of Pediatrics, pediatricians, neurosurgeons, it’s well accepted that
violently shaking a baby causes injury to that baby.And outside of a few limited numbers of
physicians, most of whom appear as defense witnesses, there’s really no
controversy about it.

¶9When the defense lawyer asked Dr. Valvano about
“biomechanical research on the amount of force it takes to injure the brain,”
Dr. Valvano told the jury:

There has been biomechanical modeling.It’s very crude.It’s very, very hard to recreate the
complexities of the human brain and human neck in a doll model.

So, for example, one of the
first studies ever done was a plastic doll head stuffed with wet cotton
attached to a metal hinge.That hardly
replicates a human baby.

So, yes, there is
biomechanical modeling that have tried to estimate forces.And that work is ongoing, and what we find is
as those models become more sophisticated the amount of force that we are
seeing that is required to cause these injuries is actually less.

….

But nonetheless there is a
substantial amount of research, and it’s well accepted in the medical community
that abusive head trauma is a very real thing.

¶10There was then the following exchange between the defense
lawyer and Dr. Valvano:

Q.Before you said
that there wasn’t really any research. Now you’re saying there is but you just
don’t agree with it?

A.I’m confused.I never said there wasn’t research supporting
abusive head trauma.

Q.But there has
been research about how you cause brain injury either forcible events or how
much force it takes to cause brain injury; is that correct?

A.There are
biomechanical modeling studies and also computer modeling studies that are
trying to do that, yes.But those are
fairly crude still.

Q.And you don’t
believe in them?

A.It’s not that I
don’t believe in them.I think we are
still learning from them; and as the models become more sophisticated, our
information is better.

But you can’t look at a doll head stuffed with cotton and say
that the information you get from that is directly transferable to a human baby
who has been subjected to abusive head trauma.Because the human baby is obviously much more complex than a plastic
head stuffed with wet cotton.

¶11Dr. Tlomak, the medical examiner, also testified for the State,
as material:

·That she did the autopsy of Matthew and
concluded the “cause of death was complications of blunt force injuries of the
head.”

·That she did not believe that Matthew died from sudden
infant death syndrome “[b]ecause I had findings of remote subdural hemorrhage,
remote subarachnoid hemorrhage, findings of severe brain injury, findings of
remote retinal hemorrhages; and it’s not consistent with SIDS.With SIDS death that autopsy findings are
negative.”

·She also told the jury that Matthew’s death “was
a homicide” because there was no “history of accidental type injuries;” and
“[t]he amount of force required to cause this type of injuries is very large”
like that caused “during high speed motor car accidents or falling from high
buildings.” “There were multiple studies
done that showed falling from at least third floor, at least third floor can
cause this type of injuries.” “[F]alling
from the short distance two, three, four feet will not cause a severe brain
injury.”

·relying on “no history of accidental injury” and
that “[i]f someone had given you a history of accidental injury, than you could
well have determined that was an accident?”;

·for basing “a large part [of] your determination
is really your opinion based on what other people told you?”; and

·for “not go[ing] out and investigat[ing] it
yourself” and for “relying on what those other people tell you to be the
truth?”

¶13The defense lawyer then asked Dr. Tlomak if she “rule[d] out
shaken baby syndrome?” Dr. Tlomak
answered: “I don’t use the term ‘shaken
baby syndrome’” because “[i]t’s a very controversial term.”She explained that: “The baby can die from being shaken, but it’s
-- the cause of death is still blunt force injuries of the head. … Because when the baby is shaken, the baby’s
head will move back and forth, and it’s not in the straight line.The head will go on both sides.At the same time, the brain is moving inside
the head; and it causes this severe injuries in the brain, and that’s why the
babies will die.”

¶14Cramer’s lawyer got Dr. Tlomak to admit that she did not “know
how much force” it would take to cause Matthew’s injuries, and charged in his
cross-examination that Dr. Tlomak had “no idea at all.” The lawyer also got Dr. Tlomak to say she
“wasn’t there” and she “cannot tell what happened to the child.” Dr. Tlomak also testified in response to the
defense lawyer’s questions that she looks for fractures in head trauma cases,
and “there was no evidence of fractures” here.

¶15Dr. Thomas Young, a “self-employed … forensic pathologist,”
testified as an expert witness for the defense.Dr. Young theorized that Matthew’s injuries were the result of
“resuscitated Sudden Infant Death Syndrome” or “complications of hypoxic ischemic
encephalopathy due to an apparent life threatening event.” He testified that when the heart and breathing
stops and “if somebody happens to get there early enough and then start doing
CPR trying to resuscitate the child, they may be able to get the heart
functioning again.” He explained that in
those rare cases:

·“[T]here’s usually been very, very severe brain
damage by that point” because when “blood flow to the brain stops for a period
of time” “tissue death starts” and when “the heart starts up again and there’s
blood flow that is resumed” “the blood vessels will get leaky” “and then you’ll
start to get some oozing of blood” that can result in subdural hemorrhaging.

·“And at that point, you still start to get
collections of blood in the subdural space that are not under any kind of
pressure.It’s just that they are
basically oozing, and they start to collect in the subdural space.” And then the leaky blood “will basically shift
with gravity” “along the spinal cord[.]”

·That a subdural hemorrhage “is not always due to
trauma.”

·Dr. Valvano and Dr. Tlomak “committed an error
in terms of their determination of cause and manner of death.”

¶16Cramer’s lawyer then asked Dr. Young a series of questions about
short falls:

Q.[Dr. Tlomak] testified
earlier that assume that she said that, for example, that a fall on a bathtub
where you hit your head may not be fatal.Do you agree with that?

A.I disagree with
that.

Q.Why is that?

A.Because people
and children have had accidents there in home situations in which there have
been falls, frequently unguarded falls.And they’ve died as a result of this.These are items that are well documented.

Q.And in your
experience as a pathologist, forensic pathologist, have you had these sorts of
cases?

A.Yes.

¶17Cramer’s lawyer also asked about the “lack of evidence of
trauma in this case” and Dr. Young answered:“What both of these doctors do is they reason backwards where they start
with the evidence and they don’t listen to any witnesses and they don’t pay
attention to any accounts. They just
basically say, this child has a subdural hematoma, this child has retinal
hemorrhages, therefore, it’s child abuse.” (Formatting altered.)According to Dr. Young, subdural hematoma
could be caused by “an inborn error of metabolism” problems with “platelet
functions or blood clotting” “hypoxic ischemic encephalopathy” and “[w]ide
varieties of trauma mostly from impact.” Dr. Young also offered a variety of other
causes for “retinal hematoma” besides “child abuse.”

¶18When asked about “shaken baby syndrome” Dr. Young said “Shaken
baby syndrome was basically proven false back in 1987.” Dr. Young testified about his experience with
blunt force trauma cases:

In situations where I’ve seen subdural hemorrhages from
trauma from impact, either in the form of somebody either being hit with a
blunt object or basically falling, there’s evidence of trauma.

You see the deep bleeding in
the scalp.You can see skull
fractures.It takes quite a bit of
force.It takes quite a bit of energy to
cause a subdural hemorrhage from trauma.

When you see that sort of
thing, traumatic cases are traumatic looking.There’s a problem basically when you are attributing something to
trauma, and there’s no evidence of trauma.

Dr. Tlomak testified during the
State’s rebuttal that the damages seen on Matthew’s autopsy “were completely
different” from an autopsy she did on a resuscitated sudden infant death case.

¶19As we have seen, the jury found Cramer guilty.His postconviction motion claimed that “the
state presented demonstrably false testimony to the jury, that trial lawyer was
ineffective in failing to challenge the false testimony and that because of the
false testimony the real controversy has not been fully tried.”Cramer’s motion relies on the post-trial
opinions of forensic pathologist, Dr. John Plunkett, who, according to Cramer’s
motion, would testify that:

·“[L]ucid intervals” of up to three days, which
can occur with head trauma, make it impossible to determine when Matthew’s head
injury occurred.

·Dr. Valvano and Dr. Tlomak’s conclusions were
incorrect; “Matthew had no evidence of shaking or impact injury.”“There is no experimental evidence that
shaking can cause brain damage in an infant” only neck damage.

·“Dr. Valvano’s conclusion that Matthew’s pattern
of retinal hemorrhages can only be due to abusive head trauma or an severe
accidental trauma is speculation and is contradicted by research and
case-report literature.There are no
experimental studies that support this mechanism.In contrast, there are several experimental
studies indicating that an increase in intracranial pressure is the cause for
hemorrhage in these situations.”

·Dr. Valvano’s testimony on “low-level fall[s]” “is
incorrect.”

·“Dr. Valvano’s claim that other than a few
defense witnesses there is no controversy about SBS syndrome is wrong as
demonstrated by several recent court cases and journal articles.”

·“Dr. Valvano was incorrect when he said” he
could not put a number on the force necessary to cause Matthew’s injury because
“[t]here have been Federal Standards for infant
head injury thresholds since approximately 1995.”

·Dr. Tlomak’s testimony that the scarring found
during autopsy supported a traumatic brain injury was incorrect because this
can only occur with “skull fractures, which Matthew did not have.”

·Dr. Tlomak’s testimony about the amount of force
needed and her short-fall-distance opinions were wrong.He averred that a three-story fall would
cause a “displaced skull fracture.”

·A “sudden unexpected infant death in which the
infant has been resuscitated and lives for several weeks or months may have
identical autopsy findings to those of mechanical (impact) trauma.”

·Dr. Tlomak’s testimony about a prior
resuscitated sudden infant death case showing different injuries than Matthew’s
was, in his view, irrelevant.

¶20Cramer claims that Dr. Plunkett’s testimony proves that the
State’s experts testified falsely at trial and violated his due-process
rights.The trial court denied the
motion without a hearing, ruling:

Dr. Plunkett’s conclusions are no more than his
opinions.The fact that his conclusions
differ from those made by the State’s witnesses does not establish that their
testimony was false or misleading.Drs.
Valvano and Tlomak were qualified to render the opinions they did, and Dr.
Young offered his own opinion.There is
no basis to conclude that Drs. Valvano or Tlomak made false or misleading
statements because the defendant’s postconviction expert takes issue with
certain aspects of their testimony.

We now turn to Cramer’s
contentions on this appeal.

II.

A.Alleged false
testimony.

¶21As we have seen, Cramer claims Dr. Plunkett’s opinions prove
“the State presented demonstrably false and misleading testimony” and the trial
court erred in summarily denying his motion.We, like the trial court, disagree.

¶22The State may not use false testimony to get a conviction.See Giglio v. United States, 405 U.S.
150, 153–154 (1972), because this would, obviously, violate a defendant’s right
to due process, Napue v. Illinois, 360 U.S. 264, 269 (1959).To prove a due process violation, a defendant
must show: “(1) that there was
false testimony; (2) that the [State] knew or should have known it was false;
and (3) that there is a likelihood that the false testimony affected the
judgment of the jury.”United
States v. Freeman, 650 F.3d 673, 678 (7th Cir. 2011).We review de
novo a trial court’s conclusion whether a defendant was denied due process
because of the State’s presentation of allegedly false evidence. See State v. Burns, 2011 WI 22, ¶23,
332 Wis. 2d 730, 747, 798 N.W.2d 166, 174.

¶23When a “defendant fails to allege sufficient facts in his
motion to raise a question of fact, or presents only conclusionary allegations,
or if the record conclusively demonstrates that the defendant is not entitled
to relief, the trial court may in the exercise of its legal discretion deny the
motion without a hearing.”Nelson
v. State, 54 Wis. 2d 489, 497–498, 195 N.W.2d 629, 633 (1972).

¶24Cramer has not shown that the State used false testimony.Both Dr. Valvano and Dr. Tlomak were
qualified expert witnesses, and we do not understand Cramer to contend in his
postconviction motion or on this appeal that they were not. See Wis. Stat. Rule 907.02.Both physicians personally treated Matthew
and saw evidence of his injuries first-hand. Both based their opinions on their training,
experience, and knowledge.The fact that
Dr. Plunkett (or Dr. Young for that matter) disagreed with their opinions
does not make their testimony false. Indeed,
Cramer’s argument that Drs. Valvano and Tlomak testified falsely is tenuous at best. For
example, Cramer argues that Dr. Valvano’s testimony that:“There really is no controversy outside the
courtroom.The American Academy of
Pediatrics, pediatricians, neurosurgeons, it’s well accepted that violently
shaking a baby causes injury to that baby” is false given the medical
literature on which he relies.The medical-literature
controversy however, is not that “violently shaking a baby causes injury to
that baby” but rather whether shaking alone, without some type of impact, can
cause the type of brain injury commonly associated with shaken baby syndrome in
the past.See State v. Edmunds,
2008 WI App 33, ¶15, 308 Wis. 2d 374, 385, 746 N.W.2d 590, 596 (“[A]
significant and legitimate debate in the medical community has developed in the
past ten years over whether infants can be fatally injured through shaking
alone[.]”).As we have seen, Dr. Valvano
testified that Matthew died from abusive head trauma, not shaken baby syndrome.

¶25Cramer’s other “false testimony claims” centered on: (1) short falls, and (2) that impacts with
soft cushions do not leave external evidence of injury rest on red herrings.There is no history in the Record that Matthew
fell—short or long.Moreover, Cramer’s
theory that short falls can cause injury, and that Matthew did not have any broken
bones or other external injuries was also fully presented to the jury through
Dr. Young’s testimony and Cramer’s cross-examination of Drs. Valvano and Tlomak.The jury believed the State’s experts despite
Cramer’s expert’s contrary opinions.

B.Alleged need for
a Machnerhearing.

¶26Cramer claims the trial court should have held a Machner
hearing to determine whether his lawyer gave him constitutionally ineffective representation
because his trial lawyer did not: (1) raise
the lucid-interval in sudden-infant-death-syndrome situations; and (2) more
effectively challenge the State’s expert witnesses.

¶27In order to show constitutionally ineffective representation,
Cramer must show:(1) deficient
representation; and (2) resulting prejudice.See Strickland v. Washington, 466 U.S.
668, 687 (1984).To prove deficient representation,
he must point to specific acts or omissions by his lawyer that are “outside the
wide range of professionally competent assistance,” seeid., 466 U.S. at
690, and to prove resulting prejudice, he must show that his lawyer’s
errors were so serious that he was deprived of a fair trial and reliable
outcome, seeid., 466 U.S. at
687.We do not need to
address both Strickland aspects if a defendant does not make a sufficient
showing on either one. See id., 466 U.S. at
697.

¶28A circuit court must hold an evidentiary hearing on an
ineffective-assistance-of-counsel claim only if the defendant “‘alleges
sufficient material facts that, if true, would entitle the defendant to
relief.’” State
v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 123, 700 N.W.2d
62, 68 (quoted source omitted). If the postconviction motion does not assert
sufficient facts, or presents only conclusory allegations, or if the Record
conclusively demonstrates that the defendant is not entitled to relief, the
circuit court may deny the claim without a hearing. Ibid.We review de
novo whether a defendant is entitled to an evidentiary hearing. State
v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50, 53 (1996).

1.Lucid Interval.

¶29Cramer contends that his lawyer should have argued that there
was a possibility that Matthew had a lucid interval because that, he claims,
would have convinced the jury that he was not responsible for Matthew’s
death.There is, however, no evidence to
support the lucid interval argument.Both Cramer and his wife denied that Matthew had had any prior
accidental falls or trauma.Both Cramer
and his wife said that Matthew had been healthy from birth and was acting
normally the morning of the 911 call.Moreover,
the defense’s strategy was that the cause of Matthew’s death was natural—a
resuscitated sudden infant death.In
other words, the trial lawyer’s theory was that no one caused Matthew’s
death.If Cramer’s lawyer would have
added “lucid interval” to that defense, he would have had to argue that Matthew
had an earlier accident or trauma. There
is no evidence in the Record that Matthew had an earlier accident or trauma,
and Cramer’s appellate materials do not suggest otherwise.On our de
novo review, the trial court did not err when it denied Cramer’s request
for a Machner hearing.

2.Challenging the
State’s experts.

¶30Cramer also argues his lawyer gave him constitutionally ineffective
representation because he did not challenge the State’s experts more vigorously
on cross-examination.The Record forcefully
belies this claim, however. As we have
seen, Cramer’s lawyer aggressively cross-examined the State’s expert witnesses.
Further, Cramer’s lawyer presented the testimony of a strong defense expert
witness, Dr. Young, who not only opined that Matthew’s death had a “natural
cause,” but who also sharply criticized and contradicted the testimony of the
State’s experts.The fact that the jury
did not credit Dr. Young’s opinions, does not make Cramer’s lawyer constitutionally
ineffective.Again, on our de novo review, the trial court
appropriately denied Cramer’s motion for a Machner hearing.

C.Interest of
Justice.

¶31Cramer asks us to reverse “in the interest of justice” because
the jury did not hear Dr. Plunkett’s testimony on shaken-baby-impact syndrome
and lucid intervals.Wisconsin Stat. § 752.35 controls
discretionary reversals.That section
provides:

In an appeal to the court of
appeals, if it appears from the record that the real controversy has not been fully
tried, or that it is probable that justice has for any reason miscarried, the
court may reverse the judgment or order appealed from, regardless of whether
the proper motion or objection appears in the record and may direct the entry
of the proper judgment or remit the case to the trial court for entry of the
proper judgment or for a new trial, and direct the making of such amendments in
the pleadings and the adoption of such procedure in that court, not
inconsistent with statutes or rules, as are necessary to accomplish the ends of
justice.

¶32The “real controversy” here was what and who caused Matthew’s
death.The State’s experts testified
that Matthew died from abusive head trauma and Cramer’s expert testified that
Matthew died from sudden-infant-death syndrome, and attributed all of Matthew’s
internal injuries to Cramer’s alleged efforts to resuscitate the child.Finding another expert after the trial who
would have disagreed with the State’s experts does not mean the real controversy
was not tried.The jury heard the
State’s experts and Cramer’s expert.It
believed the State’s. This is not one of
those relatively rare situations where we should grant a new trial in the
interest of justice. See Vollmer
v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797, 802 (1990).Indeed, Cramer’s interest-of-justice
contention is but the wine of his other arguments, which we have already
rejected, repackaged in a new container.See Mentek v. State, 71 Wis. 2d 799,
809, 238 N.W.2d 752, 758 (1976) (“We have found each of these arguments to be
without substance.Adding them together
adds nothing. Zero plus zero equals
zero.”).

By the Court.—Judgment and order affirmed.

Publication in theofficialreports is not recommended

[1] The
Honorable Kevin E. Martens presided over Cramer’s trial.The Honorable Jeffrey A. Wagner denied
Cramer’s motion for postconviction relief.The jury also found Cramer guilty of bail-jumping for violating a
no-contact order by talking to his wife.He does not appeal that part of the judgment.